DACA Ruled Unlawful By Federal Appeals Court, But Program Continues For Now

Daily Montanan

October 9, 2022

A federal appeals court has upheld a prior ruling that the Obama-era Deferred Action for Childhood Arrivals program is unlawful, sending the case back to a lower court that will decide the legality of the program that includes more than 600,000 undocumented people.

The ruling means the program remains for now and those in it are still protected, but the future of DACA is up in the air pending the next judicial step. No new participants are being enrolled.

President Joe Biden issued a statement that he was “disappointed” in the Wednesday night ruling, and said the “decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade.”

The president also called on Congress to “pass permanent protections for Dreamers, including a pathway to citizenship.”

Nine Republican-led states challenged DACA, arguing that the White House overreached in creating a program that should have been left to Congress. The states also said they were harmed financially by incurring costs for DACA recipients’ health care and education.

Those states are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

The Wednesday ruling upholds a lower court decision in the Southern District of Texas by U.S. District Judge Andrew Hanen, who ruled in July 2021 that the program was unlawful and prevented the government from accepting new DACA applications, but allowed the program to remain for current participants.

Hanen decided that because the program was not subject to public comment or notice, it violated the Administrative Procedure Act.

In the Wednesday decision, a three-judge panel from the 5th Circuit Court of Appeals, headquartered in New Orleans, said that the Obama administration did not have the authority to create the program in 2012. The panel sent the case back to Hanen, asking the judge to look at the new version of a rule on the program issued by the Biden administration in August, which is set to take effect Oct. 31.

“A district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule,” the judges, one appointed by President George W. Bush and two by President Donald Trump, wrote.

In July, the U.S. Department of Justice, allied with the state of New Jersey, immigration advocacy groups and corporations like Amazon and Google, argued for the program, saying that Dreamers have grown up in it and become vital to the U.S. economy.

DACA was created a decade ago with the aim of providing temporary relief for children who were brought into the country unlawfully, allowing them to obtain drivers licenses and work permits and protecting them from deportation.

Most of the children in the program are now adults, and their futures remain in limbo.

Secretary of U.S. Homeland Security Alejandro N. Mayorkas said in a statement that he was deeply disappointed by the ruling and that the agency is “currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response.”

He said that DHS will continue to accept new and renewed DACA applications, but will only process the renewal requests.

“It is clear, though, that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients,” Mayorkas said.

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